Clee v First Secretary of State and another

  Judgment As Approved by the Court THE HONOURABLE MR JUSTICE WYN WILLIAMS Mr Justice Wyn Williams : Introduction 1.                  This is an appeal under section 289 of the Town and Country Planning Act against a decision of an Inspector duly appointed by the First Defendant to uphold an enforcement notice (subject to one modification) served upon the Claimant by the Second Defendant. Permission to appeal was granted by Beatson J on 4 September 2006. Background and Facts 2.                  During the course of 2005 the Second Defendant issued two enforcement notices in respect of an area of land of some 0.6 hectares situated in well wooded open countryside on the east side of a highway known as Hilderstone Road (B5066) about 2 km from the built up area of Meir Heath in the county of Staffordshire. In this judgment I will refer only to the notice which was issued on the 15 November 2005 since that was the notice upon which the Inspector appointed by the First Defendant adjudicated. The notice alleged that a Mr Albert Newitt had committed a breach of planning control in that he had changed the use of the area of land (and buildings thereupon) (hereinafter referred to as the “appeal site”) from nursery and landscaping business use to use for a residential caravan site without planning permission. The notice required that he stop using the land and buildings for a residential caravan site; that he remove from the land caravans, portable stores and hard standings and that he comply with these requirements within one month of the date of the notice. 3.                  Mr Newitt appealed to the First Defendant against the issue of the notice. It is common ground that at the date his appeal was heard the appeal site was occupied by Mr Newitt and his wife and four other families. The Claimant was one of the people occupying the site. Each of the families resided in touring caravans. It is also common ground that each of the persons occupying the site was a gypsy. That was also common ground during the course of the appeal before the Inspector appointed by the First Defendant. 4.                  The appeal proceeded by way of a public local inquiry which lasted two days in March 2006. Thereafter the Inspector undertook a site visit. His decision was that the time for compliance with the notice should be changed from one month to three months but otherwise the appeal should be dismissed. The principal issue for debate at the inquiry was whether or not the enforcement notice should be quashed and the appellant granted planning permission for use of the appeal site as a residential caravan site. The primary contention of the appellant was that planning permission should be granted for such a use without any limitation of time upon that use. His secondary position, however, was that planning permission should be granted for a limited period of time – in effect for such reasonable period of time as would enable a suitable alternative site to be made available. As I understand it the Second Defendant resisted the grant of both types of permission. 5.                  The appeal site is located within an area designated as a Green Belt. However in 1990 planning permission was granted for development associated with the use of the land by a company involved in the business of landscaping. That permission contemplated the erection of buildings on a temporary basis and, as I understand it, permission to retain those buildings was granted periodically after 1990. 6.                  In March 2005 an application for planning permission for use of a site (which became the appeal site) as a gypsy caravan site was refused by the local planning authority on the basis that such development was inappropriate in a Green Belt. 7.                  When the enforcement notice was issued in November 2005 the relevant national policy guidance about gypsy caravan sites was to be found in Circular 1/94. By the time the appeal was heard before the Inspector that Circular had ceased to have effect since it had been replaced by Circular 01/2006 which was issued on 2 February 2006.   The Claimant’s Ground of Challenge 8.                  An appeal to this Court under Section 289 Town and Planning Act 1990 lies only upon a point or points of law. In the Claim Form the Claimant has formulated a number of bases of challenge. These grounds of challenge are elucidated in a detailed and helpful Skeleton Argument presented to this Court by Mr Masters. For the purposes of identifying the points at issue in this appeal I take as my starting point the written submissions of Mr Masters in his Skeleton Argument. He submits that the following legal principles apply in a case such as the present; ·         Circular 01/2006 creates two tests both of which have to be considered by the decision maker; the first test relates to whether or not planning permission should be granted which is unlimited in time; the second test relates to whether permission should be granted which is limited in time; ·        The decision maker is obliged to consider the issue of temporary consent; ·        The decision maker must act within the law and apply the tests identified in Circular 01/2006 and he must not take into account irrelevant matters or exclude relevant matters. Mr Masters further submits that the test to be applied when considering whether or not to grant planning permission which is limited in time is to be found within paragraph 41 to 46 of Circular 01/2006. Those paragraphs are headed “Transitional Arrangements” and, submits Mr Masters, the guidance is directed to a situation where the search for appropriate sites for gypsies is ongoing in the context of local development plans but is not complete at the time when the decision about a time limited permission has to be made. The advice, he submits, is encapsulated in paragraphs 45 and 46 of Circular 01/2006 which read as follows: – “45. Advice on the use of temporary permissions is contained in paragraphs 108-113 of Circular 11/95, The use of Conditions in Planning Permission. Paragraph 100 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.   46. Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for the use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that requires significant capital outlay” 9.                  Mr. Masters does not submit that the Inspector failed to have regard to Circular 01/2006 and any appropriate test contained within the Circular when he made his decision to refuse planning permission without limitation of time. However, Mr Masters does submit that the Inspector failed to consider, at all, the provisions of paragraphs 41 to 46 of the Circular and, thereby, failed to consider in a lawful manner whether or not a permission limited in time should have been granted in this case. This is his primary contention in this appeal and although his written Skeleton deals with other matters Mr. Masters was robust enough in his oral submissions to acknowledge that if he cannot succeed on this contention he is unlikely to succeed on his other points. It is to this primary contention, therefore, that I turn first. 10.              I do not necessarily accept that Circular 01/2006 is laying down tests as lawyers would usually use that word. I accept without reservation, however, that any decision maker must have proper regard to national policy guidance and that if he fails to do so his decision will be susceptible to challenge in this court. It seems to me therefore, that my primary task is to see whether or not the Inspector had proper regard to the guidance contained within Circular 01/2006 about the grant of planning permission limited in time. If he did his decision is unimpeachable; if he did not it may be susceptible to a successful challenge. I do not understand Mr. Warren, Counsel for the First Defendant, to challenge that analysis. The case for the First Defendant, in summary, is that the Inspector did consider the provisions in Circular 01/2006 which relate to the grant of temporary planning permission and he was entitled to reach the conclusion which he did which was that no temporary consent should be granted. 11.              In paragraph 17 to 21 of his decision letter the Inspector considers the need for gypsy and traveller sites within the Second Defendant’s administrative area given the level of existing provision for such sites. His conclusion is that although there was “not a high level of need ………… there [was a demonstrable need]” for such sites. This, according to the Inspector, was a consideration in favour of the alleged development. In paragraph 25 to 28 of the decision letter the Inspector considers the weight to be attached to relevant structure and local plan policies for the provision of gypsy sites. As is clear he undertook that assessment against the context of both Circular 1/94 and Circular 01/2006. The relevant local plan policy was HOU21 and the Inspector’s conclusion is that limited weight only should be attached to it since it had largely been superseded by the structure plan and “recently issued national policy guidance on gypsies”. This last phrase, of course, can be a reference only to Circular 01/2006. It is of some note, however, that the Inspector also concludes that the policy went some way to meeting the requirements outlined in Circular 1/94 which obviously suggests that the Inspector was treating that Circular as being of some relevance in his consideration. I will return to that point later in this judgment. 12.              In paragraph 34 to 37 the Inspector expresses his conclusions on the issue of whether or not planning permission either limited or unlimited in time should be granted. This section of his decision letter begins with a recitation of the aims set out in Circular 01/2006. Paragraph 35 reiterates the fact that a demand for a caravan site within the Second Defendant’s administrative area was established. Paragraphs 36 and 37 read as follows:- “36.  The personal circumstance of Mr Hewitt and other site residents on such matters as health and education, do not on the evidence before me constitute special circumstances sufficient to overcome the strong policy presumption against inappropriate development in a Green Belt. I am also aware that the Green Belt covers only a small percentage of open land within the Borough. I find the site to be in a conspicuous location in the countryside visible from the nearby public highway and footpaths. The siting of caravans and other structure has introduced an intensive form of development onto predominantly open land formerly used in connection with a nursery operator and landscape contractor. This conflicts with the object of maintaining the openness of the Green Belt. 37.  In coming to my conclusion, I recognise the dismissal of the ground (a) appeal will result in an interference with the aspiration of the appellant and other residents to make the appeal site their home. However, that interference must be balanced against the legitimate aim stated in Article 8 of the European Convention on Human Rights which clearly includes town and country planning objectives such as the protection of the Green Belt in the interest of the wider community. The objections to the alleged development are compelling and cannot be overcome by granting a temporary planning permission or permission subject to conditions such as those suggested by the Council. The public interest can only be safeguarded by refusal of the deemed application and cessation of use. The appeal on ground (a) must fail and I shall not grant permission on the deemed application.” 13.              Mr Warren acknowledges, as he must, that the paragraphs summarised and quoted from the Inspector’s conclusions contain no express reference to paragraphs 45 and 46 of Circular 01/2006. He submits, nonetheless, that the Inspector must have given proper consideration to those paragraphs since in paragraph 37 of his decision letter he states: – “The objections to the alleged development are compelling and cannot be overcome by granting a temporary planning permission or permission subject to conditions such as those suggested by the Council.” 14.              In my judgment this passage demonstrates that the Inspector did, indeed, consider whether or not to grant a permission which was limited in time. There is no basis, in my judgment, for concluding otherwise. It follows that the Inspector can only be criticised in relation to his appreciation of circular 01/2006 if it can be demonstrated that in some way he misunderstood or misapplied it. 15.              The obligation, if that is the correct word, upon a decision maker when faced with an application for planning permission for a caravan site for gypsies and where there is a demonstrable unmet need for such a site but no readily available alternative to the application site is to “give consideration to granting a temporary permission”. The important phrase is “give consideration to granting”. It is clear, in my judgment that the decision maker does not have to grant permission even in circumstances where there is a demonstrable need for a site and no alternative is available. In reaching this conclusion I am not alone. In the R (Doncaster Metropolitan Borough Council) v The First Secretary of State and another [2007] EWHC 1034 (Admin) Mr George Bartlett QC (sitting as a Deputy High Court Judge) made exactly the same point in paragraph 25 of his judgment. I quote: – “The new circular enjoined her [the Inspector] to give consideration to granting a temporary permission where there was a reasonable expectation that new sites were likely to become available at the end of the period. It did not require that there should be a time limited permission if there was no such reasonable expectation. That would be a matter for judgment of the decision maker in the light of all circumstances.” 16.              In this case the Inspector concluded that the objections to the alleged development were compelling and could not be overcome by granting a temporary planning permission. That was a matter of planning judgment for the Inspector. It does not seem to me that I can possibly conclude that the Inspector either misunderstood the relevant paragraphs of Circular 01/2006 or misapplied those paragraphs in the face if such a trenchant finding. It would, perhaps, have been prudent for the Inspector to have referred, expressly, to paragraphs 45 and 46 of Circular 01/2006 but, in my judgment, there is no real basis for the conclusion that he ignored, misunderstood or misapplied those paragraphs. After all, the terms of the paragraphs had been drawn specifically to his attention in the evidence given at the inquiry. It seems to me to be a legitimate view as a matter of planning judgment that notwithstanding the unmet need for a site the appeal site was not suitable even for a limited period of time. 17.              That being so, Mr. Master’s primary ground of challenge must fail. 18.              I turn briefly to deal with the other grounds of challenge mounted by Mr Masters. He correctly points out that the Inspector decided that some weight should be given to local plan policy HOU21 albeit that weight was limited. He further submits that the Inspector appears to have reached that conclusion not by reference to the current national policy guidance (Circular 01/2006) but reference to Circular 01/1994 – see paragraph 11 above. As a matter of plain reading of the decision letter Mr Masters may well be correct. Further, in my judgment, the Inspector should, in reality, have disregarded Circular 1/94 since at the time of his decision it had been replaced. That said, in the end the Inspector attached limited weight to a local plan policy which was extant at the time of his decision. It is true that this may have been in an inappropriate context but I cannot accept that the limited weight given to policy HOU21 had any real bearing upon the Inspector’s decision. It seems to me to be clear that the Inspector took the view that the overriding objection to the appeal site was its location in a Green Belt. 19.              Ultimately, in paragraphs 25 to 28 of his decision letter the Inspector is assessing the weight which should be attached to various local policies. He concludes that limited weight should be attached to policy HOU21 and he specifically reaches the conclusion that its weight should be treated as limited because he recognises that it has been superseded by the Structure Plan and recently issued national policy guidance. As I have said the recent national policy guidance can only be Circular 01/2006. I do not think that the Inspector can truly be said to have fallen into a material error of law simply because he relates policy HOU21 to requirements which were set out in Circular 1/94. In any event, the reading of paragraph 28 of the decision letter suggested by Mr Warren in paragraph 23 to 25 of his Skeleton Argument may well be correct. 20.              Mr Masters also seeks to argue that the Inspector failed to consider properly or give any weight to the “fallback position” of the existing use of appeal site. I remind myself that despite its location within the Green Belt it enjoyed an existing planning permission for part of its area for a landscape contractors’ business. 21.              I can find no basis for concluding that the Inspector’s treatment of this issue was in any way erroneous in judging whether or not planning permission (either unlimited or limited in time) should be granted for a residential caravan site. Again I content myself with adopting paragraphs 26 to 30 of Mr Warren’s Skeleton Argument which deals, in my judgment, comprehensively with this issue. As I have indicated earlier in this judgment Mr Masters was good enough, in oral submissions, to recognise that this was one of his less persuasive grounds. 22.              Finally, and simply to record the nature of the challenge as a whole, Mr Masters, in writing, argued that the Inspector had behaved in a manner which no reasonable Inspector could have done in refusing a temporary permission and he also erred in his approach to the potential impact of his decision upon the human rights of the Appellant and the other families currently residing on the appeal site. Given that I have found that the Inspector made no error of law in his approach to Circular 01/2006 the challenge based upon unreasonableness is doomed to failure. So far as the Appellant’s human rights are concerned the Inspector clearly conducted the balancing exercise required under Article 8 in paragraph 37 of his decision letter. I can find no basis for the conclusion that the Inspector acted unlawfully on this basis. 23.              It follows from the above that this appeal is dismissed.